END USER LICENSE AGREEMENT
NSION 21.4.2021 THE ACCOMPANYING SOFTWARE, DOCUMENTATION, AND THEIR CONTENTS ARE EXCLUSIVE PROPERTY OF NSION LTD. AND NSION TECHNOLOGIES INC., OR ITS SUPPLIERS AND ARE SUBJECT TO THIS END USER LICENSE AGREEMENT (THE“AGREEMENT”). BY USING, INSTALLING, COPYING, OR DISTRIBUTING ALL OR ANY PORTION OF THE SOFTWARE OR DOCUMENTATION, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU ARE REPRESENTING AND WARRANTING THAT YOU HAVE THE AUTHORITY TO BIND THE LICENSEE AND YOU ARE CONSENTING TO BE BOUND BY, AND BECOMING A PARTY TO, THIS AGREEMENT. UPON ACCEPTANCE, THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY ENTITY THAT OBTAINED THE SOFTWARE AND THE DOCUMENTATION AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE OR THE DOCUMENTATION. THE LICENSOR SHALL HAVE THE RIGHT, ON ITS OWN DISCRETION, TO MODIFY, UPDATE, AND CHANGE THE CONTENTS OF, THIS AGREEMENT. THE LICENSOR SHALL NOTIFY THE LICENSEE OF ANY CHANGES MADE TO THIS AGREEMENT WITHOUT UNDUE DELAY AND THE LICENSEE SHALL HAVE AN OPPORTUNITY TO ACCEPT OR DECLINE THE CHANGED AGREEMENT. IF THE LICENSEE DOES NOT ACCEPT THE CHANGED AGREEMENT THE LICENSEE SHALL CEASE THE USE OF THE SOFTWARE IMMEDIATELY.
In this Agreement, the following terms and expressions shall have the meanings set forth below:
“Licensor” means NSION ltd and NSION Technologies INC or any of their subsidiaries.
“Licensee” or “You” means the person or the legal entity who is using the Software and the Documentation and is a party to this Agreement.
“Documentation” means any documents or explanatory written materials or files provided by the Licensor.
“Software” means (i) all the contents of the files(delivered in any form) and (ii) upgrades, updates, additions, modified versions, and copies of the foregoing, provided to the Licensee by the Licensor at any given time(collectively “Updates”).
“Source Code” means a text listing of commands which are compiled or assembled into the executable Software and is exclusively and solely owned by the Licensor.
“Operating Platform” means all the applications including, but not limited to, web browsers, mobile devices, and personal computers on which the Software and the Documentation is used by the Licensee.
“Parties” means the Licensor and the Licensee collectively.
“Warranty Period” is defined in section 8.1.
“Open-Source Software” means a computer software in which source code is released under a license in which the copyright holder grants users the right to use, study, change, and distribute the Open Source Software to anyone and for any purpose.
2. Other terms and agreements
2.1.The Licensor permits You to use the Software and the Documentation only in accordance with the terms and conditions of this Agreement. Use of some third-party materials, if any, included in the Software or in theDocumentation may be subject to other terms and conditions. Such other terms and conditions will supersede all or portions of this Agreement in the event of a conflict with the terms and conditions of this Agreement.
3. Grant of license
3.1. The Licensor grants the Licensee a non-exclusive and non-transferable license to use the Software and the Documentation on the OperatingPlatform solely for the purpose they are designed and created by the Licensor.3.2. The Licensee shall not rent, lease, sublicense, assign, or transfer in any manner, any rights in the Software or authorize all or any portion of the Software to be copied onto another user’s Operating Platform except expressly agreed otherwise in writing between the Parties.
3.3. The Licensee shall not modify, adapt or create derivative works based upon the Software. The Licensee shall not reverse engineer, decompile, disassemble, or otherwise attempt to discover the Source Code. If You are located in the European Union check the section 12 (European Union)of this Agreement.
3.4. The Licensee shall not hire or appoint any third party to install Updates or to modify the Software without the Licensor’s written approval.
3.5. The Licensee (if the Licensee is a legal entity) may acquire access licenses to the Software for its employees or other person from the Licensor. The access license user shall be bound by this Agreement where applicable. The Licensee shall be obligated to ensure that the access license user conforms with this Agreement when he/she is using the Software.
4. Intellectual property rights
4.1. The Software and the Documentation are exclusive and proprietary property of the Licensor and its suppliers. The structure, functioning, and the Source Code and the Software are valuable assets of the Licensor and they are held as trade secrets and confidential information of theLicensor and its suppliers.
4.2. The Software is protected by law including, but not limited to, the copyright laws of the United States and other countries, and by international treaty provisions.
4.3.This Agreement does not constitute a sell of the Software or the Documentation. This Agreement does not constitute a sell or transfer of any intellectual property rights owned by the Licensor or its suppliers. All rights are expressly reserved by the Licensor or its suppliers.
6.1. The Licensee agrees to hold the Licensor harmless from any and all liabilities, losses, damages, actions, or claims including, but not limited to, reasonable costs, expenses, and attorney’s fees arising out of, or relating to, the Licensee’s improper or negligent use of the Software.
7. Limitation of liability
7.1. IN NO EVENT SHALL THE LICENSOR BE LIABLE TO THE LICENSEE FOR ANY DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOSS OF PROFITS, EVEN IF AN NSION REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, OR CLAIMS. THE THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. NSION’SAGGREGATE AND TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID FOR THE SOFTWARE BY YOU TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES IF ANY. However, nothing shall limit NSION’s liability under this Agreement in the event of damages resulting from NSION’sgross negligence or deliberate fraud.
8.1. The Licensor hereby warrants during the Warranty Period, the modification will materially conform to the forth in the Documentation applicable to the Software. The Warranty Period begins on the date the Licensor makes the Software available for electronic download by You and ends ninety (90) days later. This limited warranty is void if the software failure has resulted from modification, accident, abuse, misuse, or misapplication of the Software or other conduct or conditions outside the control of the Licensor. Your sole remedy for any breach of this limited warranty shall be, at the Licensor’s sole discretion, either (i) return of the price paid by You for the defective Software or (ii) repair or replacement by the Licensor of the defective Software. The warranty set forth in this Section 8.1 will terminate upon any termination of the license granted hereunder.
8.2. The Licensor shall not be responsible for maintenance, support, updating, or any similar matter, under this Agreement.
8.3. ANY WARRANTY OR GUARANTEE GRANTED FOR THE SOFTWARE IN ANY OTHER AGREEMENT, UNDERTAKING, OR SIMILAR COMMITMENT, SHALL SUPERSEDE THE WARRANTY PERIOD STATED HEREIN.
9. Warranty disclaimer
9.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE, RELATED SERVICES, AND THE DOCUMENTATION ARE PROVIDED “AS IS”. TO THE EXTENT PERMITTED BY APPLICABLE LAW. LICENSOR, FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS, EXCLUDES ALL TERMS, CONDITIONS, AND WARRANTIES, BE THEY EXPRESS OR IMPLIED BY LAW, STATUTE, COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR OTHERWISE.SPECIFICALLY, AND WITHOUT LIMITATION, ON ITS OWN BEHALF AND THAT OF ITS SUPPLIERS, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY AND ANY WARRANTIES RELATING TO NON-INTERRUPTION OF USE OR FREEDOM FROM ERRORS, VIRUSES OR BUGS. NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON BEHALF OF THE LICENSOR CONCERNING THE SOFTWARE OR THE DOCUMENTATION. TO THE EXTENT AN IMPLIED TERM, CONDITION, OR WARRANTY CANNOT BE EXCLUDED OR DISCLAIMED, THEN IT IS LIMITED IN DURATION TO THE WARRANTY PERIOD.
10.1.The Licensee shall comply with all applicable import and export laws, restrictions, and regulations of any Finland, EU, United States, or foreign agency or authority. You will not import or export or re-export or allow the import or export or re-export of any product, technology or the information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions, or regulations.10.2.If the Software is held or identified as export controlled items under any applicable export law, You represent and warrant that You are not a citizen, or otherwise located within, an embargoed nation and that You are not otherwise prohibited under any applicable export law from receiving the Software. All rights and license to use the Software are granted on condition that such rights are forfeited if You fail to comply with the terms and conditions of this Agreement.
11. Government procurement
11.1. As defined in FAR section 2.101, DFAR section 252.227- 7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. You will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.
12. European Union provisions
12.1. Nothing in this Agreement (including section 3.3) shall limit any non-waivable right to decompile the Software that You may have under mandatory law. For example, if You are located in the European Union, You may have the right upon specific conditions specified in the applicable law to decompile the Software if it is necessary to do so in order to achieve interoperability of the Software with other software or computer program, and You have first asked the Licensor in writing to provide the information necessary to achieve such interoperability and the Licensor has not made such information available to You. TheLicensor shall have the right to impose reasonable conditions before providing such information.
12.2. Any, and all, the information provided by the Licensor or obtained by You, as permitted hereunder, may only be used by You for the purpose described herein and may not be disclosed to any third party od used to create any software which is substantially similar to the Software or used for any other act which infringes the Licensor’s immaterial property rights or copyrights.
13. Open-Source Software
13.1. The Software contains or is provided with components subject to the terms and conditions of Open-Source Software licenses. The Open-Source Software may be identified in the Documentation, or the Licensor shall provide a list of the Open-Source Software for a particular version ofthe Software to You upon your written request. To the extent required by the license that accompanies the Open-Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open-Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. You agree to comply with the terms and conditions se tforth in the licenses applicable to such Open-Source Software.
14. Term and Termination
14.1. The license granted in this Agreement shall be effective until terminated. The license granted in this Agreement will terminate automatically if you fail to cure any material breach of this Agreement within thirty (30) days of receiving notice of such breach from the Licensor or the Partner (or immediately upon notice in the case of a breach of Section 3 (Grant oflicense)). Upon termination, You shall immediately cease all use of theSoftware and the Documentation and return or destroy all copies of the Software and the Documentation and all portions thereof and, at the Licensor’s request, so certify to the Licensor. Except for the license granted in this Agreement and except as otherwise expressly provided herein, the terms of this Agreement shall survive any termination of the license granted. Termination is not an exclusive remedy, and all other remedies will be available whether or not the license granted is terminated.
15.1. This Agreement sets forth the entire agreement and understanding between the Parties and supersedes all negotiations, memoranda and existing arrangements or agreements between the Parties relating to the subject matter.
15.2. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provisions, or, if possible, as constrained by the authority, provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement for any of the Parties.
15.3. Failure by the Licensor to enforce any term or provision of this Agreementin any specific instance or instances hereunder shall not constitute a waiver by the Licensor of any such terms or provisions and the Licensor may enforce such term or provision in any subsequent instance without any limitation or penalty whatsoever.
15.4.Neither this Agreement nor any rights granted herein may be assigned or transferred by You, whether voluntarily or by operation of law, without the express written permission of the Licensor, and any attempt to do so shall be null and void. This Agreement or any rights or obligations hereunder may be assigned by the Licensor without your consent.
16. Governing law and settlement of disputes
16.1. This Agreement shall be governed and construed in accordance with the substantive laws of Finland, without regarding its choice of law principles. Application of the U.N. Convention on Contracts for theInternational Sale of Goods is expressly excluded.
16.2. The Parties shall strive to settle any dispute, controversy, or claim arising from the interpretation or performance, or in connection with, this Agreement through amicable consultations. Any disputes, controversies, or claims arising out of, or in connection with, this Agreement shall be settled in the district court of Helsinki, Finland. Both Parties consent to the jurisdiction of such court.
16.3.In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees.16.4.The Parties agree that a material breach of this Agreement adversely affecting the Licensor’s proprietary rights in the Software or the Documentation would cause irreparable injury to the Licensor for which monetary damages would not be an adequate remedy and that the Licensor shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.